Perspective: The social cost of investigations and court proceedings taking the time that they do

To be faced with criminal charges or disciplinary proceedings is a distressing event for any person. The courts have recognised this as a matter of natural inference.¹ Most recently, Dr Yeo Sow Nam who was wrongfully accused of outrage of modesty/molest which allegedly took place in 2017, was granted acquittal for all charges earlier this week.

1. Police investigations should be carried out expeditiously

In passing sentence upon Mr Chan Kum Hong Randy for cheating offences back in 2008, the Honourable Justice of Appeal V K Rajah had this to say:-²

“A key prerequisite to an efficient criminal justice system is that those suspected of serious wrongdoing must not only be brought to justice, but must be brought to justice swiftly and expeditiously, particularly where there is already sufficient evidence to mount a strong case against them. The investigation and the consequent prosecution of criminal conduct should be carried out as quickly as is reasonably practicable if the objectives of the criminal justice system … are to be met.”

In a case that was subsequently described as a “bureaucratic morass” that dragged on for nearly 6 years, Mr Chan’s initial sentence of five years’ imprisonment was reduced on appeal by JA Rajah to 2 days’ imprisonment.³ A significant factor was JA Rajah’s observation that it was “irrefutable that diligent prosecution would have resulted in all the charges against the appellant … being considered together for the purposes of sentencing.”⁴ The delay resulted in Mr Chan having completed his sentence for one set of offences and being released from prison before again facing prosecution for a second set of offences, even though he had already admitted to them at the outset.

Since then, only a handful of cases have had the opportunity to cite and apply this decision, and we have not had another case quite like it.

That police investigations should proceed expeditiously and without delay is a given. They are the first step in the criminal justice process. The key task of the police at this stage is to gather evidence, including taking statements from the relevant witnesses and seizing case exhibits, before escalating the matter to the Attorney-General’s Chambers (AGC) to take a decision whether to press charges or not. It is common knowledge that this depends on the AGC’s assessment of whether (1) the evidence is strong enough to bring a prosecution; and (2) whether a prosecution would serve the public interest.

In other words, the AGC may take an honest view that an offence has been made out, but decide not to pursue a prosecution. The exercise of prosecutorial discretion is not often and not easily challenged.

But where the AGC does decide to pursue a prosecution, it must nevertheless prove its case in court beyond a reasonable doubt. If a prosecution is brought, it goes without saying that the police and AGC have taken the view that an offence has been committed. But this is not the end of the matter. The court still has to decide.

2. Mental distress, anguish and the decay of evidence caused by delay

Aside from the recognised mental distress and anguish caused to an accused person by any delay in the investigative and prosecutorial processes, there is also the issue of decay of evidence. Especially where a property offence has been committed, case exhibits should be expeditiously seized and documented. A delay of five weeks between the filing of a police report for theft and the viewing of the alleged stolen items by the police is unacceptably long. Acquittals have been granted on less serious breaks in the chain of custody of evidence.⁵

Another issue with a long gap in time between the commission of an alleged offence and the eventual trial is that witnesses may start to forget important details, or even go missing.⁶ This is why the police are tasked to identify and take statements from the relevant witnesses as quickly as possible once an offence is reported.

3. No fixed time for investigations to run

Under our Criminal Procedure Code (CPC), there is no rule that a criminal prosecution must be brought within a certain amount of time from the commission of the offence, unlike in other countries that have a statute of limitations on certain criminal prosecutions. So how long is a reasonable length of time that we should allow for police investigations to run? There is no easy answer to this question. We have been given statistics that suggest that our police force is overworked. This must be balanced against the hardship and prejudice that is suffered by every suspect in an investigation.

4. Bail depends on the nature of the alleged offence and a person’s roots

Unless the alleged offence is very minor, the accused person would have to procure someone to post bail for him. Under Section 94(1)(a) of the CPC, his passport may be seized and he would not be allowed to travel except at the discretion of the police. He would have to report to the police about once or twice a month to confirm his whereabouts, in addition to having to do so whenever the police need to take further statements from him pursuant to Section 22 of the CPC.

If the suspect is a foreigner, he may lose his work permit or employment pass whilst awaiting the outcome of investigations. Yet, he would not be allowed to return to his home country until investigations are completed, and would remain in Singapore on a special pass. In such a situation, he would not be able to earn an income since such a pass would not permit employment. More so, if the suspect is a tourist.

5. Length of police investigations may vary depending on the offence

Different offences would require different investigation times. An offence of theft would not take as long to investigate as white-collar crime such as offences under the Prevention of Corruption Act or the Securities and Futures Act. These latter offences would, for example, require the retrieval and examination of bank account statements, trading account statements and other financial documents. The exercise of taking statements from the suspect and witnesses would also be more complex.

There are other, more serious offences for which the suspect is immediately held in police custody without bail upon the commencement of investigations. The majority of these are murder and drug trafficking cases, for which the possibility of bail would be precluded by law pursuant to Section 95(1)(a) of the CPC. These cases typically take at least two years, if not more, to reach trial. Concomitantly, the miscarriage of justice is all the greater if the suspect is later found not guilty. An extreme example is given by the recent acquittal of a now 34-year-old Nigerian man, Mr Ilechukwu Uchechukwu Chukwudi, who was first accused of drug trafficking more than nine years ago.⁷

Long investigation times would, to a certain extent, be ameliorated by releasing the suspect on bail and allowing him to carry on with life as normally as possible, pending a verdict by the court. This consideration obviously applies less to (1) persons whose livelihoods are directly and immediately affected by the onset of investigations; and (2) persons who are not granted bail at all or are unable to raise bail. Ms Parti Liyani is an example of the former. Mr Ilechukwu is an example of the latter [Read: Acquittal of Capital Charge].

The courts have also developed a practice of backdating the sentence of imprisonment for any accused person who has been held without bail to the date that he was first held in police custody. This is permissible, and even encouraged, under Section 318(4) of the CPC. Together with JA Rajah’s recognition that an appropriate reduction in sentence can be given in cases where there has been an inordinate delay in prosecution not brought about by any fault of the accused, this further ameliorates the prejudice occasioned to an accused person who has had criminal proceedings hang over his head for a long time:-⁸

The palpable distress often suffered by an accused and his family pending the protracted and laborious resolution of criminal investigations and consequential prosecution cannot be underestimated. Apart from the stigma and embarrassment occasioned by such process, the accused may not only have to take time off from work (which may in turn affect his career prospects), but in addition spend huge amounts of time and money on legal representation. His life cannot return to normal until the matter is resolved one way or the other. Whilst such consequences are often admittedly an inevitable consequence of the offender’s own wrongdoing, the investigative and prosecution processes should not be unduly protracted by systemic inefficiencies.

6. Conclusion

All of the abovesaid would apply to a person who pleads guilty or is convicted after trial of the offences against him. But what of a person who is acquitted?

And this is the real nub of the issue. Innocence until guilt is proven beyond a reasonable doubt in a court of law is a hallmark of our criminal justice system, and a principle which we hold very dear. A person is not guilty just because he is being investigated by the police or has been charged in court. There is therefore no true substitute for swift and efficient criminal investigations and prosecutions. Our aim can only be to constantly strive to improve our systems and processes and never lose sight of the reminder that justice delayed is justice denied.

1. Ang Peng Tiam v Singapore Medical Council [2017] 5 SLR 356 at [123].
2. Chan Kum Hong Randy v Public Prosecutor [2008] 2 SLR(R) 1019 at [17].
3. See (2018, February 12). Appeal court slams police for ‘lackadaisical’ probe into businessman scam case. The Straits Times. www.asiaone.com/News/AsiaOne%2BNews/Crime/Story/A1Story20080212-49316.html
4. Chan Kum Hong Randy v Public Prosecutor [2008] 2 SLR(R) 1019 at [51].
5. See Selina, L. (2018, December 5). Duo escapes gallows after split apex court decision on chain of custody of seized heroin. The Straits Times.  https://www.straitstimes.com/singapore/courts-crime/duo-escapes-gallows-after-split-apex-court-decision-on-chain-of-custody-of.
6. See Selina, L. (2019, March 1). Accused drug traffickers acquitted as auxiliary police officers cannot be found for trial. The Straits Times. https://www.straitstimes.com/singapore/courts-crime/accused-drug-traffickers-acquitted-as-auxiliary-police-officers-cannot-be.
7. See Selina, L. (2020, September 18). Nigerian acquitted of drug trafficking after 9-year legal see-saw. The Straits Times. https://www.straitstimes.com/singapore/courts-crime/nigerian-acquitted-of-drug-trafficking-after-9-year-legal-see-saw.
8. Chan Kum Hong Randy v Public Prosecutor [2008] 2 SLR(R) 1019 at [62].